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On Gay Marriage, Europe Strains to Square 27 Interests

Elisa Bestetti, top, and Emmi Pihlajaniemi with their daughters, Irma, 4, and Kirsi, 2, on a family visit to Italy. The women are a legal couple in Finland.Credit
Alice Pavesi for the International Herald Tribune

CASTEL MAGGIORE, Italy — When 1-year-old Kirsi Bestetti tripped and cut her lip at her grandparents’ house last summer, her mother Elisa Bestetti rushed her to the emergency room, panicky about all the blood.

Once there, she also worried whether the hospital staff would accept her as Kirsi’s mother.

Ms. Bestetti is Italian, but towheaded Kirsi is Finnish like her birth mother, Emmi Pihlajaniemi. The two women have been married in all but name for five years at home in Finland, and each has given birth to a daughter who has been legally adopted in Finland by the other partner.

But Italy does not allow a child to have two mothers. Same-sex couples in Italy are not allowed to marry, to register partnerships, to adopt a child or benefit from assisted reproduction. Within the European Union, such family law issues remain the jealously guarded domain of the 27 individual countries, each with its own history, culture and legal tradition.

On the intertwined Continent, which prides itself on its open borders and a single market — as well as on being a trailblazer in banning discrimination based on sexual orientation, even electing openly gay politicians to high office — the resulting differences are more than symbolic. Increasingly they are leading to practical difficulties in all kinds of areas, like taxes, parental rights and inheritances, as people move around for work, love or just vacation.

“It’s a bit like baking a cake and then not wanting anybody to eat it,” said Michael Cashman, a gay-rights advocate and longtime member of the European Parliament from Britain. “But if you believe in freedom of movement — ‘Europe without borders’ — this is what we have to address: the inequalities that people face purely because of someone’s opinion.” In Kirsi’s case, the hospital ended up treating her, and the split lip was not serious. A year later there is not even a scar. But concerns linger over the family’s legal status when they venture outside of Finland.

“I don’t know if I would travel alone with Kirsi,” said Ms. Bestetti, who recounted the tale as Kirsi fidgeted on her other mother’s lap in a shady spot by the barn on the Bestetti family farm, just outside Bologna, Italy. “The Finnish state recognizes that I’m her parent, but here I’m nothing.”

The situation regarding marriage is similar in some ways to the hodgepodge of state laws in the United States. A significant difference, however, is the 1996 Defense of Marriage Act, which prevents the federal government from recognizing gay marriage and exempts states without gay marriage from having to recognize those performed in the few states that allow it. (In its next term, the Supreme Court is expected to hear a constitutional challenge to the part of the law requiring the federal government to deny benefits to same-sex married couples.)

In Europe, a handful of cases challenging cross-border obstacles have risen to European-level courts, but the resulting decisions have been limited in scope. Court observers say the judges, drawn from each member state, are keenly aware of the lack of consensus.

The European Commission, the guardian of European Union treaties, has been working on ways to make life easier for people who move across borders.

But although for two years it has been studying ways to facilitate the free circulation of civil status documents, including birth, death and marriage certificates, the proposal is still awaiting action. And when it goes forward later this year, the plan may not cover marriage. “For now, I think it is important to take one step at a time,” Viviane Reding, the European justice commissioner, said in an e-mailed response to questions.

Opponents of gay marriage argue that any attempt in Brussels to require countries to recognize same-sex marriage certificates issued in another member state would, in effect, require them to introduce gay marriage whether they wanted to or not.

“A general application of the rule of mutual recognition of civil status documents will result in a situation where the political and social choices of some member states would be imposed on all the others,” CARE for Europe, a Christian lobby group, argued in its submission to the commission, echoing numerous opponents.

So for now, gay couples and families are fighting their own battles — often at considerable expense.

Brad Brubaker, an Ohio native, met his British partner, Paul Feakes, in California in 1995. Mr. Brubaker moved to London and eventually acquired British citizenship. They entered a civil partnership, identical in all but name to marriage. Three years ago they moved to Italy and decided to open an art gallery in the Tuscan seaside town of Pietrasanta.

Photo

The family in Castel Maggiore, Italy, on July 16.Credit
Alice Pavesi for the International Herald Tribune

Italy did not recognize their partnership. In contrast to the normal treatment for married couples working together, they were forced to register the gallery in Mr. Brubaker’s name alone, while Mr. Feakes had to be listed as an employee — with a contract and payroll and all the costly extra paperwork that entailed.

“That’s when we realized the discrimination of it,” Mr. Brubaker said. “People think Europe is so far ahead, and I guess in some ways it is. But it’s not quite there yet.”

Mr. Brubaker and Mr. Feakes decided not to go to court. Others have, with mixed results.

Tomasz Szypula, 32, who is a native of Poland, a European Union member, met his Spanish partner, José Antonio, in 2002 while studying in Krakow, Poland. They later moved to Warsaw and bought an apartment together. In 2010, five years after Spain legalized gay marriage, they decided to go to Mr. Antonio’s hometown near Alicante and marry.

“Marriage, I think, is a kind of affirmation — you tell each other we are together in good health and bad,” Mr. Szypula said. “And it’s something that you do for other people, like your family, friends and neighbors.”

But two years later, they are still single. The Polish authorities, seeing a man’s name on Mr. Szypula’s paperwork as his future spouse, refused to issue the necessary legal document confirming that he was eligible to be married.

The Polish Constitution, adopted in 1997, defines marriage as a union of a man and a woman, and Polish officials have argued that is an “essential condition” for issuing the certificates. So far, the Polish courts have agreed; a decision on the couple’s appeal is due this fall.

“It’s not just a legal case; it’s also a hot political issue here,” Mr. Szypula said. “The judges, they do what they can to take it slow.”

Arguing that the situation in Poland was incompatible with respect for private and family life, the European Commission intervened last year and won a promise from the Polish authorities to change the policy. So far, they have not.

The commission says it intends to follow up, but Ms. Reding stressed in the e-mail interview that Brussels “does not have the power — neither do we want it” to fundamentally change European family law.

With the exception of Italy and Malta, where the Vatican’s influence is strong, and Greece and Cyprus, the divisions in the European Union are mostly between the more liberal West and the more conservative, formerly Communist-ruled East, said Robert Wintemute, a professor of human rights law at King’s College London. “In the U.S., when you look at the map, you have the Northeast and the West Coast where there’s the most progress, and then the South is the big empty space,” he said. “In Europe, it’s the West-East divide.”

Denmark, which introduced registered partnerships in 1989, became, in June, the latest European Union member to make its marriage laws “gender neutral,” joining the Netherlands, Belgium, Spain, Sweden and Portugal. Ten other of the bloc’s countries allow some form of registered partnership or civil union. Of those, France, which has a new Socialist government, announced in July its intention to move to full marriage and adoption rights next year. Britain, Luxembourg and Finland are talking about following suit.

That leaves 11 members of the European Union that do not recognize gay marriage or registered partnerships. Poland, Latvia and Bulgaria have constitutional bans.

The debate can be heated. In Italy, an assembly of the main center-left Democratic Party ended in disarray this month when the president, Rosy Bindi, refused to allow a vote on a proposal to back same-sex marriage, which she called unconstitutional. Last week, Pier Ferdinando Casini, the head of a Catholic centrist party, called gay marriage “a profoundly uncivil idea — a violence of nature against nature.”

Given the lack of legal security, Ms. Bestetti said she preferred living in Helsinki, where life with Kirsi and her 4-year-old sister, Irma, is more normal. But she and Ms. Pihlajaniemi visit the small farm here in Castel Maggiore a couple of times a year to see family and friends. They are expecting their third child, a boy, in mid-August, and are looking for a name that will work in both Finnish and Italian.

Still, they worry how they will explain to their children that they have two parents in one country and only one parent in another, or why some of the older Italian relatives still refer to Ms. Pihlajaniemi as the girls’ “aunt.”